Tuesday, October 6, 2009

Denying justice is surely a crime in itself

This is another of the older articles about John and his case that John has asked me to post. It is a 2008 column from a former editor of The Sault Star.

Denying justice is surely a crime in itself
by Dough Milroy, from The Sault Star, March 15, 2008.

I live in the hope that I will never have to write another line about John Moore, the man convicted of second-degree murder by two Sault judges because the prosecution managed to convince them that he "ought to have known" a murder was going to be committed.

But I won't hold my breath.

Because it has become painfully obvious over the years that most of the politicians and bureaucrats that infest Ottawa don't have the time, the will or the sense of fairness required to deal with one man and a charge the courts today wouldn't even hear.

Moore, as regular readers of this newspaper will undoubtedly recall, was convicted of second-degree murder in a Sault Ste. Marie court in 1978, even though evidence showed he was not present when Gordon Stevens and Terry Hogan killed 18-year-old cab driver Donald Lanthier in a robbery that netted them $15.

Moore was not convicted of conspiracy, just that he knew or "ought to have known" a robbery was going to take place as he had associated with the two killers earlier in the day.

Moore won a retrial but was convicted again in 1982.

He could not be convicted if tried now as the law under which he was convicted no longer exists.

In 1987 the Supreme Court of Canada overturned a murder conviction against Yvan Vaillancourt, a New Brunswicker who had participated in a robbery of a pool hall, in which his accomplice shot and killed a man, on the basis that he was not responsible or liable for the death since he could not have "objectively forseen it," effectively striking down the section of the Criminal Code that said any part to one crime in which another committed "ought to have known" the probably consequences.

It was a ruling that Moore thought might help him clear his name. It never did.

He has devoted his life to this cause since his release from prison in 1987, but despite submitting mountains of correspondence and pulling in lots of support from both within and without the political spheres, he has not made any headway with those at the upper end of the justice system. They have simply stood by the original decisions of the juries on a charge that has been declared unconstitutional by the highest court in the land.

So although Moore is continuing his fight, he is now focusing on another avenue. He is again seeking a free pardon under the provision of the Royal Prerogative of Mercy.

This route had been suggested to Moore in 1991 by Howard Hampton, then attorney general in Ontario's NDP government.

Moore took Hampton's advice but his application was rebuffed.

Doug Lewis, solicitor general in the then Progressive Conservative government, wrote him in 1993 that Sec. 690 of the Criminal Code (repealed in 2002) allows the minister of justice, on application for mercy from a convicted person, to order a new trial or refer the matter to a court of appeal for determination. He said the possibilities for remedial action under that section had to be exhausted before the matter could be referred to his ministry for consideration.

Moore continued his quest but with the same disappointing results. Although he had the support of many in and around Sudbury, where he has resided since his release from prison in 1987, including Liberal MP Diane Marleau, the John Howard Society, the Elizabeth Fry Society, he got nowhere.

J. Herve Sauve Q.C., wrote in his support in 2007. "I was Crown attorney for Sudbury and Manitoulin for 23 years. I feel I would not have prosecuted Mr. Moore for murder with those facts. It would have been unjust. Crown attorneys represent justice and the public. I feel in this case the prosecution went overboard for a conviction."

In October of 2007 Moore applied again for a free pardon but was certainly not cheered by the initial response from the solicitor general's ministry.

"In order to qualify for a pardon you must have a full five years after the warrant expiry date, that is five years after the sentence of the court has been satisfied," J. Wilson wrote. "This means that a lifer will never qualify for a pardon as they will be responsible to the criminal justice system one way or the other for life. They can use the route of the Royal Prerogative of Mercy -- a route involving the government of the day to basically negate the life sentence, a route that will only be given consideration if there are major extenuating circumstances -- and I know of only two in my 25-year career."

Sec. 748 of the Criminal Code says the Governor in Council may grant a free or conditional pardon to any person who has been convicted of an offence, the person thereafter deemed never to have committed the offence.

I see no reason why this should not be applicable to Moore.

Think about it. He was not at the scene where a murder was committed. He could not be convicted now because the law under which he was convicted no longer exists. He is not a danger to society, having become a responsible member of it, amply evidenced by the wealth of letters of support he has now and has had over the years and the fact he helped foil a robbery he happened upon at a convenience store in 2003.

Moore will have to report to a parole officer every three months for the rest of his life. He must get permission to travel. Any breach of parole could see him returned to prison.

Why not let him lead a normal life? Even if he had a debt to repay to society, surely it is repaid.

Keeping him in chains for something that is no longer a crime is surely a crime in itself.

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